REAL ESTATE PURCHASE CONTRACT
THIS AGREEMENT, made as of the 17th day of May, 1996 between Xxxxxxx X. and
May X. Xxxx at 0000 Xxx Xxxxxx Xxxx, Xxxx, XX 00000 ("Seller"), and Essex
Partners Inc., a New York corporation with offices at 000 Xxxxxxxxx Xxxxx, Xxxxx
000, Xxxxxxxxx, Xxx Xxxx 00000 ("Purchaser"),
WITNESSETH:
1. Seller agrees to sell to Purchaser and Purchaser agrees to buy from
Seller, in accordance with the terms, conditions and stipulations set forth in
this Real Estate Purchase Contract ("Contract"), that real property with all
improvements located thereon, known as 0000 Xxx Xxxxxx Xxxx, Xxxx, XX 00000 with
Erie County Index Number 40-017-073.0002.01 (the "Land").
2. PURCHASE PRICE: The total purchase price to be paid to Seller by
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Purchaser for the Land (the "Purchase Price") shall be two hundred ninety
thousand dollars ($290,000).
3. PAYMENT OF PURCHASE PRICE: Subject to the terms and conditions of this
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Contract, the Purchase Price shall be payable to Seller at the Closing in
immediately available U.S. funds.
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4. DEPOSIT: Upon receipt of a fully executed Contract (the "Time Line
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Date"), Purchaser shall deliver its check in the amount of five thousand dollars
($5,000) to Seller's attorney which shall constitute Purchaser's good faith
deposit ("Deposit"). Purchaser shall have 90 days after the Time Line Date to
notify Seller of its intent to cancel this Contract for any reason whatsoever
and the full Deposit as set forth herein shall be directly returned to
Purchaser. Thereafter in the event this Contract does not close as a result of
failure of any condition in Section 16 or through no fault of Purchaser and
Purchaser waives its right to specific performance of this Contract then the
Deposit and any Additional Deposit as described in Section 10 shall be directly
returned to Purchaser. If Purchaser does not terminate this Contract pursuant to
Section 17 and Purchaser shall fail or refuse to perform its obligations herein
specified at or before the date of Closing (or any agreed upon extension), the
Deposit and Additional Deposit, if any, shall be forfeited as liquidated damages
which the parties hereto agree is a reasonable and proper amount in light of the
circumstances, and which forfeiture shall be Seller's sole remedy in law and
equity. "Deposit" of five thousand dollars ($5,000) shall be given to Seller 90
days after Time Line Date. These monies are non-refundable.
5. TITLE: Promptly after execution the Time Line Date, Seller shall provide
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Purchaser with a copy of any Abstract of Title and any title policy pertaining
to the Land in its possession and Purchaser shall order evidence of title to the
Land by the issuance of a current title insurance binder (the "Title Binder")
through a major national title insurance company selected by Purchaser (the
"Title Company") in the amount of the Purchase Price. The Title Binder shall set
forth the state of title to the Land and to other property that is or will be
subject to any easements or restrictions (existing or to be created pursuant to
this
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Contract) benefiting the Land, together with all exceptions or conditions to
such title, including, but without limitation to, all easements, restrictions,
rights-of-way, covenants, reservations, and all other encumbrances affecting the
Land which would appear in the owner's title policy.
6. SURVEY: Promptly after execution of this Contract, Seller agrees to
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provide Purchaser with the most recent instrument survey pertaining to the Land
in its possession. Purchaser acknowledges Seller is not in possession of survey.
7. REVIEW OF TITLE BINDER AND SURVEY: Purchaser shall have 60 days after
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the Time Line Date to deliver in writing to Seller Purchaser's objections to
title. Purchaser's failure to object to any item on the Title Binder or survey
within the time limitation imposed hereby shall be deemed to be approval of same
by Purchaser.
8. OTHER DOCUMENTATION: Seller shall deliver to Purchaser upon execution of
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this Contract the originals or copies of any Phase I and Phase II environmental
studies, soils test, utility information, topographical maps and subdivision
plots and correspondence, information and documentation which would relate to
the use and/or occupancy of the Land which are in possession of Seller or to
which Seller has access without cost other than copying or duplicating charges.
9. PURCHASER'S OBJECTION TO TITLE; DEFECTS IN TITLE: Should Purchaser as
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described in Section 7 above deliver to Seller its written objections to title
or to matters
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contained in the survey, Seller shall have 60 days either to remove all such
defects or objections or to provide assurances acceptable to Purchaser that same
will be removed at or before Closing; mortgages, deeds of trust or other liens
of a specific amount shall be cleared before or at closing, by seller or, if
requested by the Seller, by Purchaser by deduction from proceeds due Seller.
Should Seller be unable to cure (or provide assurances with respect to) any and
all such defects or objections (except liens as provided above) on or before
expiration of the 60 day period, then Purchaser may, at its option, elect to
terminate this Contract and receive a full refund of the Deposit, or to waive
its objections and proceed to Closing. Seller shall not further intentionally
encumber or restrict the title to the Land without Purchaser's prior written
consent, which shall not be unreasonably withheld.
10. CLOSING: The Closing shall be on or before the sooner of ( i ) the date
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which is thirty (30) days after the date upon which Purchaser has received site
plan approval for the Improvements (as hereinafter defined), or ( ii ) 210 days
after the Time Line Date, and shall take place in the offices of the Erie County
Clerk, or such other place mutually designated by the parties; provided,
however, that Purchaser may designate an earlier date for the Closing by written
notice delivered to Seller not less than fifteen (15) days prior to such earlier
date for the Closing so designated in such notice by Purchaser. Provided,
however, that if Purchaser has shown due diligence in endeavoring to satisfy all
contingencies herein and has been delayed by any agency or entity having control
over satisfaction of those contingencies, then it is agreed that upon written
notice to Seller of
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such delay, Purchaser shall be entitled to an extension of two months to enable
Purchaser to satisfy those contingencies and close this transaction. An
additional Deposit of $5,000 shall be paid to the Seller on or before the first
day of each month of the extension period.
11. PRORATIONS AND ADJUSTMENTS AT CLOSING: Ad Valorem and similar taxes
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assessed against the Land shall be prorated between Seller and Purchaser at the
time of Closing on the basis of a 365 day year. Prorations shall be based upon
current year's taxes and assessments, if available, or upon figures for the last
preceding year, in which event Purchaser and Seller shall readjust the
prorations when the current year's taxes and assessments become available. Any
special assessments applicable to the Land including, but no limited to,
"rollback" or other similar assessments or taxes which apply on a change in use
of the Land, if any, whether payable in a lump sum, in installments or
otherwise, shall be paid by Seller. The foregoing obligations shall survive the
Closing.
12. TRANSACTION COSTS: Seller and Purchaser shall each be responsible for
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the payment of one-half of all transfer, state and documentary stamps to be
affixed to the instrument. Purchaser shall be responsible for all other costs,
including the cost of the Title Policy, Survey and recording the deed, provided,
however, that each party shall pay its own attorney's fees.
13. WARRANTY DEED AND OTHER DOCUMENTS REQUIRED FOR CLOSING:
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A. At the Closing, Seller shall deliver the following:
1. Warranty Deed in fee simple, free and clear of all liens and
encumbrances, except subject to the following items now of record: utility,
rights-of-way and easements for the purpose of providing utility service to the
property herein described, common driveway or party wall agreements, recorded
restrictions, and zoning regulations; otherwise the title to the above-described
real estate shall be good and marketable and such as will be insured at the
regular rates by a title insurance company licensed to do business in
Pennsylvania. Also, access to a public road may require issuance of a highway
occupancy permit from the Department of Transportation. A specimen deed shall be
delivered by Seller to Purchaser's attorney for review at least ten (10) days
before Closing.
2. Documents evidencing the legal status, standing and authority
of Seller and such other documents, including standard form Seller's affidavits,
as may be required by Title Company for issuance of the Title Policy.
B. At the Closing, Purchaser shall deliver the following:
1. The Purchase price plus any costs to be shared by Purchaser
in cash, certified funds, or a bank draft.
2. Such documents evidencing the legal status, standing and
authority
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of Purchaser.
14. POSSESSION: Possession of the premises shall be delivered to the
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Purchaser either ( i ) 120 days after Closing, or ( ii ) 120 days after
Purchaser has provided written notice to vacate, but in no event prior to the
Closing Date, and Purchaser has deposited with Seller's attorney twenty-five
thousand dollars ($25,000) which together with the Deposit and Additional
Deposit, if any, would be forfeited as liquidated damages in the event that
Closing does not occur through no fault of Seller. At Closing, the twenty-five
thousand dollars ($25,000) together with the Deposit and Additional Deposit, if
any, will be applied against the Purchase Price.
15. REPRESENTATION AND WARRANTIES: For the purpose of inducing Purchaser to
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enter into and consummate this transaction, Seller represents and warrants to
Purchaser that to the best of his knowledge and belief:
( i ) The Land is not currently being used, has never been used,
as a hazardous waste disposal facility as defined in 40 C.F.R. Section 260.10;
the Land is free of any lien or encumbrance which may be created under any
applicable state or federal law, statute or regulation pertaining to hazardous
waste; and no hazardous waste has been placed onto or into the Land (for
purposes hereof, the term "hazardous waste" includes those substances listed in
40 C.F.R Section 261.30 and those substances previously determined to be
hazardous by any applicable state or federal law, statute or regulation),
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( ii ) There is no pending or threatened condemnation or any
road widening respecting all or any part of the Land.
( iii ) Seller is currently, or has entered into a contract by
which he will become, the owner and holder of fee simple title to the Land and
has full power and authority to execute this Contract and all other documents
necessary to consummate the transaction.
( iv ) Seller warrants that he has no knowledge of any deed
restrictions or other contractual restrictions or covenants which would restrict
or other impair the Purchaser from developing and operating a limited service
hotel on the land.
16. CONDITIONS TO CLOSING: Purchaser's obligation to purchase the Land at
the Closing is subject to all of the following conditions, which shall have been
fulfilled to Purchaser's satisfaction:
A. At the Closing, the following conditions shall have been
satisfied:
1. Good and marketable fee simple title to the Land shall be in
the name of the Seller and any beneficial easements and/or restrictions
appurtenant to the Land are not subject to any interest, the termination,
enforcement, exercise or foreclosure of which could terminate or prevent the
enforcement of such easement or restriction.
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2. No portion of the Land has been taken by or is the subject of
a condemnation proceeding or is under threat of condemnation
3. There has been no material or adverse change to the condition
of the Land or to the representations and warranties of Seller set forth in
Section 18 hereof.
B. The following conditions shall have been satisfied by the
Purchaser or be deemed waived by the Purchaser on or before Closing:
1. That zoning and the conditions of zoning, including any use
permit, site plan approval, curb cut permit, demolition permit, variances and
other similar governmental approvals required by law or necessitated by
Purchaser's planned use of the Land in conjunction with other land for the
construction and operation thereon of a three-story, limited service hotel
having a minimum of 100 guest rooms, along with all facilities and amenities
attendant thereto (hereinafter the "Improvements"), shall have been received.
2. That all platting or replatting requirements in respect of
the Land have been satisfied by the Purchaser to permit the transfer of title
and accommodate construction and operation of the Improvements under applicable
laws and regulations.
3. That Purchaser has reasonably determined that all permits
necessary, in Purchaser's sole opinion, for the construction and operation of
the
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Improvements on the Land, are available to Purchaser after receipt of site plan
approval.
4. Easements: Purchaser, with Seller's assistance must be able
to obtain without cost any and all easements necessary to build the proposed
development. Said easements, including but not limited to the access easement,
shall be unencumbered and the title insurance in favor of Purchaser shall insure
such easements.
5. Soil Conditions: The soil, in its natural state, must have
sufficient load-bearing characteristics to support Purchaser's proposed
development, and must have adequate permeability to drain the proposed
development. Seller warrants that to the best of his knowledge, the Premises do
not contain a landfill, hazardous waste, underground mines, caves or underground
streams and that the soil condition and water table are such that Purchaser can
build the proposed development without incurring additional extraordinary
expenses.
6. That no federal, state or local government restrictions or
requirements would preclude construction and operation of the Improvements on
the Land.
7. That all utilities including but not limited to electric,
gas, telephone, cable TV, will be available for use by Purchaser along Old
Xxxxxx Road or on the Land. Water will be available at the intersection of Old
Xxxxxx Road and Xxxxxx Road. Purchaser will be responsible for bringing water to
the Land along Old Xxxxxx Road. Seller warrants
that to the best of his knowledge sanitary sewer is currently available on the
Land. The capacity of these various services, i.e., utilities, water and sewer,
are not conditions to Closing.
8. That Purchaser has reasonably determined that the Land is
free of any hazardous substances or wastes that would preclude the Construction
of the Improvements on the Land.
9. That Purchaser is able to secure a franchise for the national
hotel brand of its choice.
C. During the term of this Contract, Purchaser shall have the right
to enter upon the Land for the purpose of making the tests and investigations,
at its expense, necessary or appropriate to satisfy the foregoing conditions.
Purchaser shall defend, indemnify and hold Seller harmless from any liability
which may arise due solely to such entry. Purchaser shall repair any damage to
the Land in the event this transaction is not consummated.
17. FAILURE OF CONDITIONS: If any of the conditions precedent to
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Purchaser's obligation to close have not occurred or been satisfied or been
deemed satisfied on or
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before 210 days after the Time Line Date or any extension thereof as set forth
in Section 10, Purchaser at its sole option may: (a) terminate this Contract by
written notice delivered to Seller on or before the Closing Date, or (b) waive
such conditions precedent and proceed to Closing.
18. NOTICES: All notices and other communications hereunder shall be in
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writing and shall be delivered personally against receipt or shall be sent by
registered mail, certified mail, or Express Mail services, postage prepaid and
return receipt requested, or by nationally utilized overnight delivery service,
addressed to the parties as follows:
As to Seller: Xxxxxxx X. and May X. Xxxx
0000 Xxx Xxxxxx Xxxx
Xxxx, XX 00000
As to Purchaser: ESSEX PARTNERS INC.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Any notice in accordance herewith shall be deemed received when delivery is
received or refused, as the case may be. Additionally, notices may be given by
telephone facsimile transmission, provided that an original copy of said
transmission shall be delivered to the addressee by nationally utilized
overnight delivery services on the day following such transmission. Telephone
facsimiles shall be deemed delivered on the date of such transmission.
19. PARTIES BOUND: This Contract shall be binding upon and inure to the
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benefit
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of Seller and Purchaser, their respective heirs, personal representatives,
successors and assigns.
20. ASSIGNMENT: Purchaser may assign this Contract to a partnership in
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which it is a general partner or a corporation in which it is a shareholder,
provided that Purchaser shall remain responsible for the faithful performances
of its obligations under the Contract.
21. GOVERNING LAW: The laws of the Commonwealth of Pennsylvania shall
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govern the validity, construction, enforcement and interpretation of this
Contract.
22. EXPIRATION: The offer of Purchaser extended by the delivery of this
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Contract to Seller shall be automatically revoked unless Seller shall execute
and deliver an executed facsimile copy of the Contract to Purchaser on or before
5:00 p.m., May 13, 1996 to be followed by originals in overnight mail.
23. MULTIPLE COUNTERPARTS: This Contract may be executed in a number of
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identical counterparts. If so executed, each of such counterparts shall,
collectively, constitute one agreement, but in making proof of this Contract, it
shall not be necessary to produce or account for more than one such counterpart.
If requested by Purchaser, Seller agrees to execute a memorandum of this
Contract in form recordable in the real property records where the Land is
situate.
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24. ENTIRE AGREEMENT: This Contract embodies the entire agreement of the
parties in respect of the transaction herein contemplated, superseding all prior
agreements whether oral or written. Any amendments hereto shall be in writing
and executed by the parties hereto.
Sellers may remove all or part of any building or building fixtures on the
property but are not obligated to do so.
SELLER
/S/ Xxxxxxx X. Xxxx
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Witness
/s/ May X. Xxxx
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PURCHASER
ESSEX PARTNERS INC.
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxxxxxxx
_______________________________ By: _____________________________
Witness Exec. V.P.
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